John Patrick Aubone Burnett, Esquire, having been created Baron Burnett of Whitchurch in the County of Devon, for life—Was, in his robes, introduced between the Lord Dholakia and the Lord Kirkwood of Kirkhope.

The right honourable William David Trimble, Esquire, having been created Baron Trimble of Lisnagarvey in the County of Antrim, for life—Was, in his robes, introduced between the Lord Rogan and the Lord Steinberg.

Lord Thomas of Gresford: The founding fathers of the United States, when they put together the American federal constitution in the latter part of the 18th century, had it right: they preserved the legislative competence of the state assemblies which were part of the federal United States. Since that time, this country, in granting independence to our dominions, to Australia and to Canada, has followed that pattern: the legislative competence remains with the state assemblies but powers are reserved to the central or federal parliament. Indeed, as recently as post war, a similar type of constitution was introduced in federal Germany so that the Lander Parliament has legislative competence and certain reserved matters, such as defence, foreign affairs and macroeconomic management, are dealt with centrally by the federal government.
	In 1978, when the Labour government under Prime Minister Callaghan introduced the Scotland Act, they reversed the situation and, in granting in that Act primary powers to a Scottish Parliament which the Act was to create, they gave defined fields to the Scottish Parliament and left the overall legislative competence with the Westminster Parliament. That, of course, was changed in the Scotland Act 1998 and, for the first time within the United Kingdom, the Scottish Parliament was granted full primary powers and matters were reserved to the Westminster Parliament in the areas that I have mentioned—defence, foreign affairs, macroeconomic management and so on.
	The same happened with Northern Ireland. Under the Northern Ireland constitution, even though we have been faced with a non-functioning parliament or Assembly, full legislative competence was granted to Northern Ireland subject only to reserve powers being retained in Westminster.
	My amendment poses the question: why is Wales different? Why should Wales be treated in the way it is? The usual argument put forward by those who believe that the Welsh Assembly should be strictly confined to defined fields is that there is no separate body of law or separate courts in Wales. Whereas Scotland has a separate judicial system which survived the Act of Union in 1705 and a separate body of law based very largely upon the common law as it developed in Scotland, that is not the position in Wales. But that argument did not seem to strike any chord with the Labour government in 1978.
	Northern Ireland, on the other hand, a creature of the Government of Ireland Act 1920, when partition was introduced, at that time had no distinctive, separate courts or separate legislation. Two separate systems of law have developed on the island of Ireland, with the northern part of it, Northern Ireland, serving a population of only 1.5 million as opposed to the nearly 3 million in Wales.
	So it is perhaps not a very strong argument that Wales does not have a separately organised legal system. It is inevitable that Wales is already developing a separate system of laws as it stands. For example, secondary legislation passed by the Welsh Assembly has to be separately interpreted. Clause 79 shows that the secondary legislation passed by the Welsh Assembly has to comply with Community law and with, via Clause 80, human rights law. If a dispute arises, it is for the courts to interpret whether such legislation is compatible with Community law or human rights law. It so happens in Wales that counsel has been appointed by the Welsh Assembly to appear in judicial review so that, when a problem arises, it is not necessary for counsel to go back to the very beginning of the Welsh separate legislation as it is developing, and matters can be taken forward in court, preferably before judges who know what they are talking about and who are familiar with Welsh devolution, by counsel which is also familiar with, and experienced in that field.
	That is the position with secondary legislation. The Bill grants powers to the Assembly to pass primary legislation, which by its very nature will differ from the primary legislation passed at Westminster. That, too, will require separate interpretation. For example, Part 2 of Schedule 5 reveals that new criminal offences will exist in Wales, provided that the sentence in a magistrates' court does not exceed 51 weeks or that, in a trial on indictment, it does not exceed 12 months. My point is that a separate system of law is emerging in Wales with barristers, solicitors and judges who are familiar with it. Ironically, moves are in hand to try to curtail the Wales and Chester circuit, which has existed since medieval times and the reign of Henry VIII, when the assizes first circulated in Wales. The plan is to remove Chester from the circuit so that we will have a Welsh body of barristers. Therefore, there is no feasible argument to defeat my proposition in this amendment that full legislative competence should be given to the Welsh Assembly, but that there should be reserve powers, just as in Scotland. What I am seeking for Wales is that which this Parliament has already granted both to Scotland and to Northern Ireland.
	An obvious area in which there should be legislative competence for a future Welsh Assembly is home affairs. If the Home Office is not fit for purpose, as a Cabinet member of this Government seems to think, it seems extraordinary that it continues to try to centralise. Nowhere in the whole body of government has there been greater opposition to devolution than in the Home Office. Whereas it would be sensible for a Welsh elected Assembly or parliament to take decisions about how Wales is to be policed, about how many police forces there should be, about how Wales is to be served by the prison department and about how probation is to work in Wales, the Home Office has always resisted that sort of thing. For example, recent consultation with the Assembly over the amalgamation of police forces led to a simple pronouncement from the Home Secretary, who said that the four police forces would be amalgamated regardless of what the Assembly and the people of Wales thought: it was to be imposed. That is the sort of thing that we seek to put in the Bill—legislative competence on a wider scale.
	The Government may say, "You cannot have legislative competence that goes beyond executive competence. In other words, you cannot expect Ministers to legislate in areas for which they have no executive responsibility". It is a good argument. However, the Bill gives us an opportunity to make a start, to put us on a parity with the other parts of the United Kingdom, to introduce a constitution that is the same in the United Kingdom as in the United States and in our former dominions where federal constitutions have been introduced.
	I do not imagine that I will persuade your Lordships that such a radical change to the Bill should be made now. However, I beg to move the amendment on the basis that this is a fight that continues.

Lord Evans of Temple Guiting: As we have heard, the amendments in this group would change how the Bill defines the matters on which the Assembly could legislate, at first by Assembly measure and then, after a referendum, by Assembly Act. One effect of Amendments Nos. 60 and 61, applying as they do to Part 3, would be to confer all legislative competence on the Assembly immediately. That would be entirely inconsistent with the incremental approach that the Government propose in Part 3. Indeed, it would be tantamount to giving the Assembly primary legislative powers, something which the Government believe would require a referendum, a view shared by the noble Lord, Lord Kingsland.
	I hope that noble Lords opposite will understand that as a matter of principle I am unable to accept the amendment. However, I take the noble Lord's point that the battle must continue. He and I have had this discussion in a number of Welsh Bills and I admire the way in which he continues to push forward the notion of further and more rapid devolution of powers to Wales. As I said, however, the Government have a view on this, which I have stated a number of times. The course we have set is the one we wish to follow.
	All four amendments raise the issue of how to define the Assembly's legislative competence. There are two ways in which this can be done. Either the matters on which the Assembly can make legislation are specified in the Bill, or the matters on which it cannot make legislation are specified. The former is the approach that we have taken. This was broadly the approach followed in the Scotland Act 1998, although the Bill before us today is more intelligible in that it uses plain language and avoids references to specific enactments whenever possible. The latter approach, of specifying matters outside legislative competence, was adopted in the Scotland Act 1998, and is the approach proposed in this amendment. This approach was also adopted in the Northern Ireland Act 1998, with some refinements.
	The Government had an open mind on which approach to take, and chose the approach taken in the Bill for technical legal reasons which were set out in the evidence given to the House of Commons Welsh Affairs Committee and the Constitution Committee of this House.
	As the noble Lord, Lord Thomas, pointed out, England and Wales is a single legal jurisdiction, and if the Assembly were able to make general legislation on any matter except those which are expressly reserved—like the Scottish Parliament or Northern Ireland Assembly—it would lead to the gradual emergence of a different and separate Welsh jurisdiction unless further, and potentially very complex, reservations were included in relation to matters such as the principles of civil and criminal law. The same complexities did not occur in relation to the Scotland Act, as Scotland already had a separate system of law in 1998.
	I do not expect the noble Lord, Lord Thomas of Gresford, to agree with me but the Government's view is that the practical consequence of these amendments would be the need for different systems of legal education, different sets of judges and lawyers, and different courts. In order to avoid this, the better solution legally is to follow the approach of the Bill and limit the legislative competence of the Assembly to specified matters.
	In addition, this has the benefit of being clearer for everyone. If any Bill were to list all the matters which were to be outside the Assembly's legislative competence, it would be a much more complex list than was required for the Scottish Parliament, simply because it would require complex exceptions on non-devolved matters such as criminal and civil law.
	Liberal Democrat spokesmen in another place explained that one of the motives for their similar amendment was their wish to leave the Bill open to the possibility of devolving further fields of competence to the Assembly. If any similar motive should lie behind this new schedule, I would like to reiterate the Government's clear intention that this Bill is about deepening devolution, and not broadening it. We are giving the Assembly more legislative power, but within the boundaries of the current devolution settlement.
	Clause 94, in addition to providing for matters relating to one or more of the fields in Schedule 5 to be added, also allows new fields to be added, so the Bill is already sufficiently flexible to accommodate the possibility of devolving further fields of competence to the Assembly. The Bill makes provision for the addition of new fields of competence to Schedule 5 via the Order in Council procedure specified in Clause 94.
	I do not expect the noble Lord, Lord Thomas of Gresford, to agree with what I have said, but I hope that, in the light of the explanation I have given, he will feel able to withdraw the amendment.

Lord Evans of Temple Guiting: As we have heard, Amendment No. 60A would remove Clause 93(7), which is included to help interpret whether a particular provision in an Assembly measure is within the Assembly's legislative competence. There is nothing unusual about it, either; it is modelled on a similar provision in the Scotland Act 1998. If a question arises as to whether a provision in a measure relates to a matter in Schedule 5, it is to be decided by considering the purpose—"the pith and substance" or "the true nature and character"—of the provision. The effect of the provision must be considered in the light of all circumstances.
	To illustrate the idea of "pith and substance", we could take the example of restricting smoking in enclosed public spaces. The substance of the matter would be about public health, because the purpose was to improve public health and cut deaths from lung cancer, heart disease and so on, caused by passive smoking. This would be a defence against any challenge that it was really about licensing because it applied to licensed premises and imposed conditions on publicans, or that it was about employment law. I use this example because, when it was given in the Commons, the response from the shadow Attorney-General was:
	"The Minister's example was a very good one, absolutely on point and has clarified the matter completely".—[Official Report, Commons, 23/1/06; col. 1250.]
	The provision also cuts both ways: it could help in deciding whether something was outside the Assembly's legislative competence, as well as within it.
	If this provision did not exist, the Assembly could be severely hampered in its ability to enact legislation. While it is possible that the courts would develop a similar interpretative tool themselves, the absence of this provision would leave unwelcome room for doubt as to how to interpret provisions of Assembly measures. Legal challenges could be brought to Assembly measures which affected, even incidentally, non-devolved matters. Good and innovative legislation could well involve provisions which cut across different subject matters or tackle problems in new ways. This is what the proposed amendment, in our view, would surely hinder. The amendment would greatly increase the scope for legal argument about whether something was or was not within the Assembly's powers.
	Given this explanation, I hope that the noble Lord, Lord Kingsland, will withdraw his amendment.

Lord Evans of Temple Guiting: I have to repeat a point I just made: if this provision did not exist, the Assembly could be severely hampered in its ability to enact legislation. While it is possible that the courts would develop a similar interpretive tool themselves, I said that the absence of this provision would leave unwelcome room for doubt as to how to interpret provisions of Assembly measures. If the noble Lord is not happy with that explanation, I undertake to write to him at considerable length within the next two or three days about this matter.

Lord Kingsland: In moving Amendment No. 61A, I shall speak also to Amendment No. 61B. Amendment No. 61A refers to Clause 94(1)(b) and Amendment No. 61B refers to Clause 94(2). These amendments are essentially probing amendments. In order to put them into context, I need to summarise what Part 3—I hesitate to say "does", and shall merely say, "seeks to do".
	What Part 3 seeks to do is to establish the law underlying Assembly measures. Assembly measures are defined in Clause 92. An Assembly measure can only be intra vires what will subsequently become the Act if it is within the range of a matter which itself is within the range of a field, both of which are set out in Schedule 5 to the Bill.
	Clause 94 (1) and (2) provide a mechanism for adding to both fields and matters contained in Schedule 5. We learn from Clause 94(1)(b) that the schedule may be amended to add a new field or vary the scope of an existing field. That power is modified by Clause 94 (2) which says that no field can be modified if the modification does not fall into a function that is already exercised by a Welsh Minister. I saw the Minister nodding so I take it that he is with me so far. My question is: what are these powers that are currently exercised by Welsh Ministers that go beyond the fields stipulated in the Bill? I beg to move.

Lord Evans of Temple Guiting: My Lords, Amendment No. 61A, on which I believe Amendment No. 61B is consequential, would prevent any addition to, or alteration of, the fields listed in Schedule 5 by Order in Council under Clause 94. Such additions or modifications to those fields could be achieved only by or under another UK Parliament Bill.
	The amendments seek to preclude any possibility of the Assembly's legislative competence being expanded into new fields. The Bill does not confer any legislative competence on the Assembly, other than in respect of those matters listed under "Field 13: National Assembly for Wales". Any decision to confer additional legislative competence on the Assembly, or to add to the fields in which it may acquire such competence, will be taken on a case-by-case basis, with the agreement of both Houses of Parliament.
	The amendments would mean that even if the Welsh Ministers were to acquire new functions in a field other than those listed in Schedule 5, the Assembly would not be able to seek to gain legislative competence in that field through an Order in Council under Clause 94. That would be unnecessarily inflexible. The Government's intention is that if functions in a new field are transferred to the Welsh Ministers then the Assembly should have the ability to acquire legislative competence over those matters, subject to Parliament's consent.
	As drafted, the Bill provides that a field cannot be added to Schedule 5 if the Welsh Ministers, First Minister or Counsel General have no functions in that field. That is consistent with the policy set out in the White Paper, Better Governance for Wales. Amendment No. 61B would remove this condition.
	It would be unreasonable to seek to limit the potential legislative competence of the Assembly in perpetuity. If Welsh Ministers were to acquire functions in a new field, as they could do under Clause 58 of the Bill, it would be inconsistent to say that the Assembly should not be able to acquire legislative competence in that field as well. Why should that field be different from all the others? It would still be a matter for Parliament to decide under Clause 94 whether Schedule 5 should be amended in that way, so Parliament would still be in control.
	I hope that what I have said reassures the noble Lord, Lord Kingsland, and that he will feel able to withdrawn his amendment.

Lord Rowlands: I believe that, since the experience of 1998 and the legislative requirements of the Assembly, there is widespread support to enable the Assembly to gain easier access to legislation than the current arrangements allow. The present arrangements are inevitably about trying to get a couple of Bills into the parliamentary Session and to achieve success for either Wales-only Bills or UK Bills with Welsh-only clauses. We should not dismiss the value of that experience, because there has already been a significant transfer of legislative competence in education and in health through that process, but those who pragmatically wish the devolution process to develop are making the reasonable point that we should find an easier way for the Assembly to fast-track legislation.
	The Richard commission considered aspects of this, and we came up with the idea of framework legislation. Indeed, there is evidence of that in the present NHS Redress Bill, which has gone through this House and in which an important framework clause paves the way. Such a means by which the Assembly might obtain legislative competence in the future may still be one of the routes that will be followed, because it makes sense to do it sometimes in a UK Bill. The Government at least appear, in the Part 3 Orders in Council, to have responded to the general feeling that there should be some way in which they could fast-track Assembly legislation. They have been described in a variety of ways since the novel introduction of such an Order in Council. They have been called an ingenious device, a backdoor means of transferring primary legislative powers or a virtual transfer of primary legislative powers.
	My amendment was prompted by the debate on the nature and character of these novel Orders in Council. What will they look like? What is the nature of their context? How widely or specifically drawn will they be? As they are novel we have no precedents to pursue; therefore, I tabled this amendment to allow the Committee to explore what an Order in Council should contain. My amendment was also prompted by the Government's very helpful effort to give us two mock examples of how an Order in Council would look. Members of the Committee who have followed these issues will know that the Government put forward mock orders for two Bills that have already gone through this House, so that we could compare the Order in Council process to the Bills, which are now Acts, which have gone through.
	The first relates to the Bill to create a Welsh ombudsman covering a whole range of public services in Wales. We were very helpfully given a draft mock order, if this Bill had not gone through, of how an Order in Council would have paved the way for the measure that subsequently would have been drafted and taken up by the Assembly. The mock order was comprehensible, but rather convoluted. Matter 14.1 refers to:
	"The creation of, and conferral of functions on, an office or body for and in connection with investigating complaints about relevant public sector persons",
	When I read that draft order I understood exactly what I was expected to support: to transfer legislative competence to the Assembly to create an ombudsman for Wales.
	I was also informed of the limitations of that ombudsman's role. The draft mock Order in Council included a provision that,
	"at least one-half of the expenditure on the exercise of the person's functions of a public nature in relation to Wales",
	has to come out of the Welsh Consolidated Fund. In other words, it limited the scope of the ombudsman and his role. He or she could not investigate bodies not covered by the provision. That draft order is perfectly understandable and sufficiently informative in content. I could understand what I was being asked to support.
	The second draft mock order covered the Transport Bill that had gone through this House, which enabled me to compare the contents of the measure in the draft order, but I found this one far less satisfactory. This and the other House would have been informed only that various provisions would be required in plans and strategies for transport and that there would be arrangements for the discharge of local party transport functions. Frankly, from that draft order I would not have fully understood the nature of the proposed measure. In particular, I could not have picked up that this subsequent measure would include the groundbreaking provision to possibly finance air services and airport services in Wales. That was of major importance and caused a great deal of genuine discussion, which was not necessarily an argument or controversy but nevertheless of interest. One could not have divined from such a draft order that the subsequent Assembly measure would include such a provision.
	That prompted me to wonder whether we should not at least try to consider what we should expect to be in a draft Order in Council. So the proposals I have put down as a basis for debate, not as an ultimate solution, would ensure that an Order in Council should at least identify the principal features of what would become an Assembly measure. I think that consideration of these issues, in particular the two illustrative examples provided by the Government, prompts the following questions: how much should be included in an order; how much of an indication should be given of a subsequent measure that the Assembly would introduce; and how far should the Order in Council define the terms and limits of the subsequent measure? These are important questions.
	Perhaps I may anticipate an obvious criticism of my proposal. Why, for example, should information be put in an order which, unlike a Bill, is unamendable? Why should Westminster get involved in the substance of subsequent Assembly measures? To those questions I give this simple answer: unlike those who argue that Part 3 is in fact a virtual transfer of primary powers, it does not transfer primary legislative powers; both Houses in Westminster remain in legislative control. Ultimately, whether we pass or reject an Order in Council is a matter for the two Houses. Obviously, if we have been asked to pass such an order, we should have some idea of what we are being asked to pass. A clearer indication of what is subsequently to become an Assembly measure is needed.
	I believe passionately that if people wish to move to primary legislative power, Part 4 is the way to do it—through a referendum. As my noble friend Lord Richard and I suggested when I served on the commission, there should be a model for that transfer. In many cases it would possibly include additional Members and, of course, the possibility of an alternative voting system. That I could at least contemplate because it makes sense, but we should answer the critics who say that Part 3 is a back-door way of doing this by saying that we should expect Orders in Council that come before this House and the other place to be specific in their aim, about what kind of legislative competence the Assembly seeks and about the objectives of such competence. I beg to move.

Lord Kingsland: The spirit in which the noble Lord, Lord Rowlands, has moved his amendment is entirely shared by all Members on these Benches. The noble Lord will see that our Amendments Nos. 64A, 64B, 64C and 66A are grouped with his; and I would be interested to know at some stage during the debate what his reaction is to our ideas on filling this undoubted gap.
	Before I turn to my amendments, I have one question about the detail of Clause 94(3), to which the noble Lord's amendment refers. I am focusing on the powers that an Order in Council provides under this clause, which grant either new fields of action or new matters of action to Schedule 5. How is Clause 94(3) relevant? I ask that for the following reason. Clause 94 provides a mechanism for creating new fields and new matters. Subsection (3) gives power under this procedure to the Crown by Order in Council to disapply existing legislation in the United Kingdom, whether it is primary legislation or secondary legislation. Is this not premature, because the transfer of fields and matters does not itself create new law; all it does is expand the vires of the Welsh Assembly to create new law through Assembly measures?
	Where an assembly measure is approved by the Crown, I can quite understand at the second Order in Council stage, when you have a new law of the land—or, at least, the land in relation to the territory of Wales—that it would be necessary to disapply certain primary legislation and delegated legislation which contradicted the terms of the Assembly measure so approved; but I cannot understand how it could possibly make sense to disapply these measures at the earlier Order in Council stage—because that stage does not change the law of any part of the United Kingdom; it merely provides extra vires to make new laws.
	I put this question to the Minister as a matter of inquiry. In my submission, this notion would be much better placed at a later stage of Part 3 of the Bill and in relation to the second Order in Council stage, not the first. I have not given the Minister warning that I was going to say this because it only occurred to me when I was looking at the text just before the noble Lord, Lord Rowlands, spoke. But, as his amendment is to that part of the Bill, it struck me that it would be an appropriate moment to mention it to the government Benches.
	As I have said, the spirit of our amendments broadly reflects that of the noble Lord, Lord Rowland. We are seeking to establish as thorough a parliamentary procedure as we possibly can to consider the draft Order in Council passed by the Welsh Assembly, together with whatever memorandum the Government produce in support of it. The attitude of Ministers in another place has been to say, "Well, this is all up to Parliament. We will leave it to you. You will have 60 days to sort all this out". I can see the force of the Government saying that it is up to Parliament—after all, they are rightly reluctant to interfere with procedures which are those exclusively of this House and another place—but, given that we are effectively transferring legislative power from both Houses to the Welsh Assembly, I would humbly submit that we might need rather longer than 60 days to consider all the details of the matter.
	That has animated our amendments tabled in this line. We believe that Parliament ought to have up to six months to consider the proposed addition of a field, or of matters under a field, before the 60-day period starts. That six months would give the Government, in seeking to formulate the right order to place before Her Majesty, the opportunity to hear representations from all parts of the United Kingdom, whether or not those submissions are made by lobbying organisations, or by voluntary organisations—of course, or by voluntary organisations lobby as well—or vested interests. It would also give the Secretary of State the opportunity to take into account any resolutions about the content of the Order in Council made either by another place or your Lordships' House. Essentially we are engaging with the noble Lord, Lord Rowlands, in his amendment, but we are trying to set out a rather more elaborate procedure than he has done.

Lord Elystan-Morgan: The situation is not entirely free of confusion. So that I can be sure that I understand the position, perhaps the Minister can confirm, first, that extensive delegated legislation powers are enjoyed by the Assembly. Such powers have been inherited from powers, which from 1964 onwards, were from time to time transferred to the office of the Secretary of State for Wales. Those powers are there. They are exercisable at any time that the Assembly wishes to and it does not have to come to this House for any sanction regarding the validity of those powers.
	Secondly, perhaps the Minister can confirm that Part 3, in accordance with the recommendations of the Richard report, allows additions to be made from time to time to the substantial delegated powers that are probably contained in scores of instruments and which are, therefore, additions to the 20 areas of jurisdiction set out in Schedule 5.
	Thirdly, if additional scrutiny was necessary, not in relation to the area of jurisdiction that was being transferred, but to the specific matter within that area, it would create a massive log-jam and make Part 3 a total nonsense. It would be impossible for any government asking for those powers to spell out the exact situations under which they will be exercised. Situations change and the possibilities are infinite. Am I right about those three fundamental points? I would be fortified if that were the case.

Lord Richard: I shall add briefly to the Minister's troubles by trying to be helpful.
	I want to look at this concept of pre-legislative scrutiny. To a certain extent, I follow the noble Lord, Lord Crickhowell, and my noble friend Lord Elystan-Morgan. I do not particularly like it but, as I understand it, the idea is that there should be pre-legislative scrutiny of the terms of the Order in Council, but there would be none in respect of any Acts passed by the Assembly under the powers conferred upon it by the Order in Council. "Pre-legislative scrutiny" is rather an ill-chosen phrase to describe that process—which almost amounts to negotiation between the Assembly in Cardiff and the Government in London—as a result of which the scope of the powers to be devolved is arrived at. The Government in London would then agree to put that in the form of an Order in Council, and would bring it to the House.
	We have got too bogged down in looking at the mechanism of the Order in Council rather than the substance. The mechanism may indeed not be the most appropriate way of doing this, but that is what the Government have chosen. Given that, we must be perfectly clear as to what it entails. A situation in which a mechanism demands that the Assembly put before Parliament the detailed terms of a measure that it proposes to pass does not make sense. Either you devolve, or you do not. If you do not, so be it. In that case, Parliament has the right to pass whatever legislation it likes. But if you want to devolve certain competences to Cardiff, the way in which they are exercised has to be determined in Wales and should not be subject to legislative scrutiny by the Westminster Parliament. The function of the Westminster Parliament is to give the Assembly the competence. Once the Assembly has the competence, it exercises it. You cannot half devolve in this sense: you either give it to them or not. If you do, you do so in the knowledge that it has competence, authority and jurisdiction to exercise it as it thinks fit.
	This is almost a classic discussion between the devolutionists on the one hand and the restrictionists on the other. I am unashamedly a devolutionist, but some of the language I have heard in some of the contributions to this debate almost leads me to believe that people are saying "Yes, we will accept this, but it is not really going to mean anything". What it will really mean is that Westminster will have control over it; first, by the Secretary of State if he wants to; and, secondly, by a system of pre-legislative scrutiny, allowing Westminster to scrutinise the details of the measures that the Assembly will pass under the devolved competences. That would be wrong, contrary to the purposes of this Bill and certainly incapable of being presented as further devolution to Wales.

Lord Rowlands: I am extremely grateful to all those who have contributed to the debate. I was not sure that I had triggered such a variety of conundrums and discussions. It is important, because this is a novel device and use of an Order in Council to achieve a perfectly proper purpose: an enhancement of the legislative competence of the Assembly in specific areas.
	If I may respond to my noble friend and to the noble Lord, Lord Crickhowell, I do not think that the noble Lord, Lord Crickhowell, is right. I do not think that it would be possible to bring forward an Order in Council in a vacuum; that is, without the Assembly having already determined in general terms what it intends to do with the power that it seeks through the Order in Council. Let us go back to the two mock orders and take not only them but also the accompanying document. There would be a two or three page memorandum from the Welsh Assembly Government on the proposed legislative competence in the field of public administration. It would describe the purpose of the order and would set out what the Welsh Assembly Government were seeking; for example, to have the legislative competence to wind-up the various ombudsmen to have one ombudsman. That memorandum would be attached to any draft Order in Council. That is the process. An Order in Council will not just seek competence in areas of public administration; it will be tied to a specific proposal. These two mock orders make that clear.

Lord Kingsland: Amendment No. 62 would remove Clause 94(4), which reads:
	"An Order in Council under this section may make provision having retrospective effect".
	My first question to the Minister is: what does this mean in an operational context? I am prompted to ask him because of what Mr David Mundell said in another place on 23 January 2006—at col. 1266 of the Official Report—in a debate about the Government of Wales Bill. Mr Mundell quoted from the Explanatory Notes, which purport to show why the provision is needed. The notes said that,
	"where there has been a legal challenge to the validity of an Assembly Measure based on doubt as to whether its provisions relate to a relevant matter, an Order in Council may restore legal certainty about the Measure by amending a matter to remove any ambiguity".
	Do the Government really intend, in legal proceedings in the courts of this land, to clarify by exercise of this retrospective power a matter that is in issue? That is totally against our constitutional traditions, and it may affect the existing rights of one party or another. I make that observation particularly in the context of the observations I made earlier about Clause 93(7). I do not know whether the Minister was in his place when the noble Lord, Lord Evans of Temple Guiting, responded to a point about the interpretive approach that the courts are supposed to take to legislative matters under Part 3. In my submission, there is real danger of a conflict between the exercise by the courts of their power under Clause 93(7) and the exercise of the Government's powers under Clause 94(4). Whatever your Lordships will make of those preliminary submissions, I am sure all your Lordships will agree that we ought not to encourage retrospective legislation under our constitutional arrangements. Therefore, any attempt to introduce a retrospective element in a Bill ought to be studied most carefully and most critically. I beg to move.

Lord Davies of Oldham: The Committee will not be surprised that the noble Lord, Lord Kingsland, alighted on this issue and identified it in his Amendment No. 62. I want to respond in a considered way to his arguments and anxieties, because if one concept sets alarm bells ringing among all those who hold democracy dear, it is that of retrospective legislation jeopardising our citizens after they have acted but before they knew that they were acting against the law. I will reassure the noble Lord on that score as best I can.
	His amendment would remove the power for an Order in Council amending Schedule 5 to have retrospective effect. This was substantially discussed in the other place. The Government have already explained the circumstances in which they envisage the power being used, both in the Explanatory Notes, to which the noble Lord, Lord Kingsland, referred, and in the debate of this important issue in the other place. I emphasise the fact that we are not talking about a measure having retrospective effect and that might have an impact on the citizen, but about an Order in Council amending Schedule 5 having retrospective effect. It is an absolutely crucial distinction. Such an Order in Council does not confer any rights or impose any obligations on any person. Rather, it amends the parameters of the Assembly's legislative competence to enact measures. The starting point is an Assembly measure that has been enacted and that relates to a matter in Part 1 of Schedule 5.
	Let us assume that there is some ambiguity in the wording of the matter, which is later picked up, and that, as a result, it is not clear that it was within the Assembly's competence to pass the measure. By the time the issue has been picked up, the provisions of the measure may well have come into force. I am sure the Committee will recognise that it would be inequitable for persons who have carried out actions in good faith as a result of obligations placed on them by the measure to be in a position where the measure itself calls the legal basis for those actions into doubt. This could be put right in order to give proper and full effect to the Assembly's and Parliament's intention by an Order in Council that could retrospectively amend the description of the matter to which the measure relates and remove any doubt about the validity of the measure.
	There are safeguards that will prevent the misuse of this power, because noble Lords will have recognised the significance of it. Before laying the Order in Council before the House, the Secretary of State would first want to ensure that it was compatible with the convention rights in the Human Rights Act 1998. Furthermore, Parliament would have to approve the Order in Council. Of course, Parliament would not do so if the order produced inequitable effects.
	I reassure the Committee that the power will be used very rarely and not without careful consideration of the grounds for doing so. In most cases, I expect the pre-legislative scrutiny of proposed Orders in Council to draw out any deficiencies in the drafting of matters to be added to Schedule 5, so that there will rarely be any need to rely on this provision in Clause 94(4) to make retrospective provision. But it is necessary to have that power to be used against a background of careful parliamentary scrutiny necessarily compatible with human rights. Nevertheless it could be that in very rare circumstances such an order would be necessary. That is why we have made provision for it in the Bill. I hope that the noble Lord accepts the Government's arguments.

Lord Evans of Temple Guiting: I shall attempt to give that clear explanation. It would be unusual for the Bill not to include a provision for how the Welsh Assembly would react when faced with an emergency. I absolutely take the point of the noble Lord, Lord Kingsland, that the Bill does not specifically state "only for emergencies" and that that is something that could be abused, but I hope that if I give an explanation at least we will see where the Government are going.
	Amendment No. 69 would prevent the Assembly from creating a fast-track legislative procedure for certain proposed Assembly measures necessary in an emergency. As it stands, the Bill allows the Assembly to make provision for this, if it wishes, via standing orders. We are very sympathetic to the concerns of the noble Lords, Lord Kingsland and Lord Crickhowell, to ensure that all proposed Assembly measures receive proper scrutiny.
	Clause 97(2) does not circumvent that. As I have said, it is intended to make allowances for emergencies where there is simply not enough time to pass a proposed Assembly measure via the usual legislative process to ensure that statutory procedures do not impede the Assembly, which is a democratically elected legislature, from acting in a proper and timely fashion to respond to circumstances that may arrive very rapidly. All legislatures require emergency procedures for law making. In this House, for example, the Elections Act 2001 was passed within a week when the date of local elections needed to be moved because of the foot and mouth outbreak. It should be noted that the same provision appears in Section 36 of the Scotland Act 1998. The Assembly will be able to ensure through standing orders that the expedited procedure is applied only in relevant circumstances and with the proper controls.
	It has been argued in another place that cases of urgency will arise only in relation to subordinate legislation made by the Welsh Ministers. It is not for us to make assumptions about what level of detail the Assembly will want to include in Assembly measures. We cannot assume that the Assembly will never enact a measure that might need to be amended urgently. It is prudent—I stress "prudent"—to include some degree of flexibility for the Assembly to be able to adjust its procedures should it see the need to do so, as can other legislatures.
	Amendments Nos. 70, 71 and 72 would remove the Assembly's discretion to make provision in its standing orders for the handling of proposed private Assembly measures. The Committee will no doubt be aware that both this House and the other place operate under a wholly different set of standing orders when considering proposed private legislation. The complex and often highly specialised nature of proposed private legislation means that having different provision in standing orders is not only appropriate, but also, arguably, necessary. For example, the need to allow those affected by a particular scheme to petition Parliament on the details of the scheme requires a wholly different type of procedure from that adopted in relation to public legislation. The same reasoning would apply equally to the Assembly. It would therefore be anomalous for the Assembly to be denied the discretion to put appropriate procedures in place for proposed private legislation. Indeed, it would arguably inhibit the Assembly's ability to ensure effective scrutiny for such matters.
	Amendment No. 89 is similar to Amendment No. 69. It would prevent the Assembly from creating in its standing orders a fast-track legislative procedure for certain Bills in certain circumstances. As we said with regard to proposed Assembly measures, accelerated procedure for legislation in emergency situations must be possible. A similar provision already exists in Section 36(2) of the Scotland Act. Both Houses of Parliament also permit proceedings on emergency legislation to be expedited. The Assembly will be able to provide safeguards against the abuse of this procedure in its standing orders. I hope that the noble Lord, Lord Kingsland, is reassured by this explanation. He said that his was a probing amendment.
	I hesitate to say that the noble Lord, Lord Kingsland, may be confusing Private Members' Bills, which are a type of public Bill and subject to the normal procedures, with private Bills, which are not.

Lord Roberts of Conwy: It is quite clear that the purpose of the amendment is to ensure that the referendum question on the ballot paper and any accompanying statement have been approved by both Houses in a procedure where they have been open to amendment.
	The Delegated Powers and Regulatory Reform Committee has drawn our attention to the fact that it is for the Order in Council to specify the referendum question and any statement to precede the question on the ballot paper. That is contained in the memorandum submitted by the Wales Office. It is unusual for such devolutionary matters to be left to subordinate legislation. The referenda of 1979 and 1997 in Wales and Scotland were covered by primary legislation, as were the London referendum and regional assemblies referendum. The Government defended their decision in their memorandum on the Bill to the Delegated Powers and Regulatory Reform Committee. The memorandum states:
	"It is highly desirable that the referendum question, and any preceding statement, are left to the Order in Council rather than specified on the face of the Bill . . . Specifying them on the face of the Bill would be inflexible".
	It adds that the need for flexibility is largely based on the obligation to consult the Electoral Commission under Section 104(4) of the Political Parties, Elections and Referendums Act of 2000.
	Of course, I grant that the Government have a case of sorts, based on convenience and expediency, but I note that the Delegated Powers and Regulatory Reform Committee is far from convinced. It feels obliged to draw the attention of the House, as I indicated in speaking to an earlier amendment, to the unprecedented nature of leaving these devolution referendum issues to subordinate legislation. I quote:
	"In deciding whether that is acceptable, the House will wish to consider whether it is important that the draft legislation containing the proposed question is amendable by the House. If the House concludes that Parliament should be able to amend the Government's proposed question, then subordinate legislation is inappropriate. The House would then need to decide whether it is more appropriate for this bill to contain the question, or for a separate bill to make that provision shortly before the time at which the Government intend to hold the referendum".
	As the official Opposition, we take the view that these matters should be amendable and that this is the predominant view of Parliament. We are open-minded as to how that ability to amend question and statement is to be secured, as indicated by our amendment. There is no shortage of time, since Ministers do not anticipate a demand for a referendum under Part 4 for at least a decade, so it is up to the Government to explore the possibilities and come up with a satisfactory answer to the problem. The substance of our amendment to Schedule 6 is still valid, however. I beg to move.

Baroness Williams of Crosby: rose to ask Her Majesty's Government what steps they have taken to counter the dangers of nuclear proliferation.
	My Lords, I am grateful to the Government Whips for having found time for this debate on such an important matter, and to colleagues in all parts of the House who have decided to stay on to take part in this discussion.
	When I first tabled this Question several months ago, Iran was still a distant thundercloud on the horizon, and the recommendations of the Weapons of Mass Destruction Commission, chaired by Hans Blix, were, at most, a gleam in his eye. We now face the fact that much of the structure of law and treaty, which to some extent restricted and confined the development of nuclear weapons, is in a state of advanced erosion. We have to look at a structure in which, for example, the nuclear non-proliferation treaty is close to breaking down, with a number of countries refusing to sign it and others refusing to obey it. We also have to recognise that the United States and many other major powers have failed to ratify the famous test ban treaty, even though, up to now, it has been obeyed in practice although it has no legal standing.
	Since the Cold War ended, far from there being a new era of disarmament and a new willingness in the world to begin to create and structure a new system of law, we have seen governments become increasingly sluggish, with lagging interest in disarmament and less enthusiasm about trying to deal with some of the new challenges that confront us. What we need now is a new structure and the reinforcement of some of the best parts of the old structure. That will require a great deal of careful thinking by governments. Most of the law regarding nuclear weapons has been based for the past 40 years on the nuclear non-proliferation treaty. It is amazing that it has survived so long and has been largely obeyed until recently. Much of its structure has suffered because of the extent to which the major powers have been seen by the rest of the world as failing to keep their side of the bargain. The major nuclear powers at the time of the passage of the nuclear non-proliferation treaty confidently insisted that they would accept a major degree of disarmament of the nuclear arsenals that they held. In the SALT agreements and in the major efforts made by President Bush the First—if I may call him that—there was a real attempt to try to reduce nuclear arsenals throughout the world. Some years ago, that effort seemed to run into the sand.
	Even today, with the Cold War long ended and with no obvious enemy for the West, some 12,000 nuclear weapons on hair-trigger alert are deployed throughout the world. Of them, 90 per cent are controlled by the United States or Russia. Another 13,000 nuclear weapons are not so deployed, and they are held by a great many countries but, again, the great majority of them are held by the United States and Russia. I have to underline the phrase "hair-trigger alert". Nuclear weapons can move from deployment to being used in a matter of seconds, and that is the tiny thread on which the safety of the world hangs. What is so extraordinary is that every one of those 12,000 nuclear weapons represents a major loss of resources that could have been used to deal with starvation, hunger and disease in the world. What makes it even more extraordinary is that nowadays nobody has any idea who the enemy is meant to be, except terrorism, and everybody agrees that the enemies who cannot be met by nuclear weapons are individual terrorists. So the situation is not only tragic; it is also, to a great extent, absurd.
	The fact that the major nuclear powers failed to keep their side of the bargain has been a substantial factor in influencing the attitude of non-nuclear countries. A few months ago, I was in India. I went to the major nuclear research centre and found a group of high quality, high level nuclear scientists who argued passionately that India had no obligation to join the nuclear non-proliferation treaty or not to go ahead with the development of nuclear weapons since the western world, in the shape of the major nuclear powers, had not taken its part of the treaty seriously and therefore there was no moral obligation on other countries to take it seriously either.
	In his introduction to the report of the Weapons of Mass Destruction Commission, which I strongly recommend to the House, Hans Blix says that,
	"the nuclear-weapon states no longer seem to take their commitment to nuclear disarmament seriously".
	Global efforts are also needed to secure and clean up fissile materials that are scattered around the world, many of them in perilous and dangerous places. In his important recent speech on foreign policy at Georgetown University, the Prime Minister, Mr Blair, said, when referring to world globalisation:
	"What this means is that we have to act, not react; we have to do so on the basis of prediction, not certainty".
	Almost every major expert in the world on terrorism predicts that nuclear weapons will fall into the hands of terrorists or other organised criminals at some time in the next 10 years unless far more radical steps are taken than have been taken so far to control the fissile materials lying around the world.
	Let me refer briefly to some of the current crises. One of them, which is rather overlooked in this country, is the Indian-American special agreement. Under it, the United States agreed to provide nuclear materials to India for her civil power needs, but did not look carefully at the shortage of uranium in India. That meant that the more the United States was willing to provide civilian uranium, the easier it was for India to divert her own materials to weapons development. In the United States, a lobby is now suggesting that Congress should, at the very least, insist that associated with the Indo-US agreement—which in many ways is a very troubling extension of the areas in which the NNPT operates—there should be a commitment by India to a fissile material cut-off, which means that any fissile material that she does not use will not be exported or used for other purposes. India has said that, in principle, she is willing do so. Pakistan has said the same.
	The second current crisis that I want to refer to briefly is North Korea. The agreement reached in 1994 on the exchange of civil nuclear materials for a decision by North Korea not to continue with nuclear weapons production was breached when the Bush Administration decided not to continue to supply light water for North Korean reactors. The latest information we have on North Korea is that an agreement was reached last September, but it depended upon implementation by both sides. Each side has said that the other side must implement before it will, and so far, there has been no agreement on concurrent implementation, which might break the logjam. Can the Minister update us on that?
	On Iran, one has to say, "Thank God for Condoleezza Rice" and possibly, "Thank God for Jack Straw" because at least America is now willing to talk directly to Iran. Without that, it is quite clear that negotiations would have gone no further. Having said that, Iran is currently deeply concerned about security guarantees and feels itself to be surrounded by potential enemies. Unless we can broaden the basis on which Iran is brought back within the international community and within the IAEA, there is little hope that the problem will be resolved any time soon. In that context, the United Kingdom and its allies should look very closely at some of the rather ambitious proposals put forward by the Blix commission, which were echoed by Prince Hassan of Jordan, for a much wider security guarantee in the Middle East that would attempt to establish a non-nuclear region. Such a guarantee would embrace Israel as well as Iran and the Arab world and would also embrace a commitment by the West and other counties, such as, for example, the Arab sheikhdoms, to provide development aid and, particularly, to try to draw up treaties involving water and energy.
	Finally, there is the issue of loose fissile materials all round the world. Most people are unaware that the total budget spent by the IAEA on securing nuclear materials, as distinct from inspecting them, is $15 million. Except for $1.3 million, all the money comes from voluntary contributions. The statutory contribution required by the treaty is only $1.3 million, which finances precisely four full-time experts. The rest are all on short-term contracts. It is crackers, to put it no stronger, that so little is being spent by all of us on securing nuclear materials in countries such as Iran, North Korea, Israel and elsewhere.
	Therefore, in conclusion, I ask the Minister whether Her Majesty's Government—the Prime Minister has recently shown a lot of interest in such matters as fuel banks—should not take to the European Union's General Affairs Council the issue of whether the EU could not contribute to the IAEA the very small sums of money required to establish a proper nuclear security system under the IAEA's ambit so that we can make sure that the loose fissile materials around the world are controlled and are under serious international inspection.
	I am grateful to everybody who has attended this debate, I am sorry that we have only an hour to discuss such a hugely complex topic.

Lord Hannay of Chiswick: My Lords, the Question on the Order Paper in the name of the noble Baroness, Lady Williams of Crosby, could not be more timely or, indeed, more essential to debate. The international disciplines the world put in place more than three decades ago, as the noble Baroness said, are under acute stress and show increasing signs of fragility. Last year two major global conferences, the NPT review conference in May and the UN summit in September, concluded without a single word being agreed, let alone any measures to strengthen the international regime.
	Two countries—North Korea and Iran—have, in one case, broken out of the regime and in the other failed to satisfy the IAEA that their long-standing clandestine uranium enrichment programme was not designed as a step towards doing so. Three countries—India, Israel and Pakistan—have never belonged to the treaty and show no signs of moving towards it. The five recognised nuclear powers have little to show, and nothing at all recently, on their nuclear disarmament. This is a sorry story on a matter which, as long ago as 1992, was clearly identified by the UN Security Council as a threat to international peace and security.
	First, I say a few words about the two most urgent cases, North Korea and Iran. We should have no illusions. If the international community cannot find an effective response to these two cases, there is no readily available fall-back position, no plan B and no second row of trenches. If countries that want to—even countries with a proven track record of assisting terrorism and challenging the UN charter, and which have signed and ratified the NPT—can acquire nuclear weapons with impunity, then we, the international community, have failed. But finding that effective response cannot just be a matter of coercion, of wielding enough sticks to bring about compliance; we must also be ready to discuss with these countries their security concerns that motivate them and, in so far as they are legitimate, we have to address them. That "we" means "all" those principally concerned, including the United States, which is why I too welcome warmly last week's statement by the US Secretary of State of willingness to join such a dialogue with Iran as the US is already doing with North Korea. We have to put forward in any such dialogue a convincing alternative to the path on which those countries have set out, one which offers real advantages and which guarantees legitimate access to civil nuclear power.
	But simply addressing those two problem cases is not enough; nor will it be successful if all we do is to find ad hoc solutions to them and if we fail to strengthen the multilateral non-proliferation system as a whole. In March of this year Mohamed El Baradei, the Director General of the IAEA, in a powerful speech in Karlsruhe, set out a comprehensive analysis of what needs to be done. Just last week, as the noble Baroness mentioned, Hans Blix published the report of his distinguished commission on the same policy areas. I would welcome the Minister's response to those two sets of ideas. What are we doing to make the additional protocol for IAEA safeguards the gold standard? What, above all, are we doing to provide internationally guaranteed assurances of the supply of enrichment and reprocessing services to any country in good standing with the IAEA so that it can pursue a civil nuclear programme without any need or temptation to acquire the whole fuel cycle?
	If anything like the current level of oil prices continues over a significant period, a large number of civil nuclear plants will be constructed worldwide in the years to come. Each of those will require enriched uranium and the reprocessing of spent fuel. If we do not do more now to address this political weakness in the regime, to provide a solid basis for a voluntary moratorium on new enrichment and reprocessing installations, we will surely rue the day—naturally, when it is too late. I warmly welcome the support the Prime Minister gave in his Georgetown speech on 26 May to such an approach. What are we going to do to make a reality of it? What is the critical path towards decisions on it?
	Later this year the Government have promised that there will be a national debate on the future of Britain's own nuclear deterrent. I certainly do not want to anticipate that debate today, but I would be grateful for an assurance from the Minister that, in framing their position on this issue, the Government will take full account of their commitments under the non-proliferation treaty—and reiterated at subsequent reviews of that treaty—to move towards nuclear disarmament. I know our past record in this matter is better than some others, but it really is important to avoid conducting this national debate with a blithe disregard to its possible impact on other countries which do not possess nuclear weapons but which may be contemplating the case for doing so. Too many of the statements by existing nuclear powers in recent times have ignored that dimension; and too few of their actions have reflected any awareness of the commitments they assumed when the NPT was negotiated.
	Today's short debate provides an opportunity to air concerns about a matter of fundamental importance to international peace and security. Can we expect that any action will be taken on these issues when the G8 heads of state and government meet in St Petersburg in July? Of course that grouping cannot take binding legal decisions, but it can give a powerful sense of direction and momentum to a debate which, so far, seems to be drifting rather aimlessly towards a dangerous fall. Energy security is one of the main themes of that summit but we will not achieve any kind of security, of energy supply or of anything else, if we do not respond effectively to the challenge of nuclear proliferation.

Lord Dykes: My Lords, the tone of pessimistic urgency in this stark subject has been aired very competently already by the two previous speakers. I am grateful to my noble friend Lady Williams for launching this debate and I agree strongly with what the noble Lord, Lord Hannay, has just said. Surely, this is the moment of reality and truth for, particularly, the advanced west to consider these matters, stark as they are—and I think that there is general agreement about that.
	Despite the fact that we in the United Kingdom can claim to have made some impressive reductions here and there, none the less the task and the obligation for us is very considerable indeed. Yet, there is a continuum of complacency about these matters, an insouciance which is positively alarming. We have to think about the longer term too. The awkward questions facing us from people such as Bruce Kent—a very controversial figure—get the response, which more and more people tend to believe, that maybe there should not be a replacement for Trident after all. Even Sir Stephen Wall is quoted in his recent letter. And there are the other aspects of the immediate crisis looming up.
	I wish to save time by not repeating the points, with which I agree, of the previous speakers and by focusing mainly on EU3 and Iran. I have a few preliminary words. The problems facing the NPT are so serious that a complete rethink is necessary, and the sooner a new document is presented to the international forum the better. I think that that is the only solution now, bearing in mind the erosion that has taken place, primarily from the insouciance and, indeed sadly, the incompetence of the United States in allowing things to develop as they have done. Nothing was sadder than seeing in the autumn when the millennium targets were enunciated and the subsequent review meeting just what a shambles that crucial meeting was on future nuclear disarmament.
	It was so sad to see that the third world had very little confidence in what the first world, the advanced western nuclear powers, and, indeed, China, had to offer. What an example that remarkable country South Africa has shown in being the only country, apart from the ex-Soviet countries, to have renounced nuclear weapons. We need not just consider marginal gestures by the western powers, led by the United States, but substantial reform moves in the future. It is preposterous that Israel is not included in these matters. I believe that it has to be included in whatever NPT mark 2 might succeed the existing arrangements. Its arsenal is very considerable indeed, and it is protected by the United States as well as by the whole international community. It is the unbeatable military power in the Middle East, and there is no need for it to have a large and provocative nuclear arsenal in the future.
	India and Pakistan have already been mentioned, and I entirely agree with the points that have been made. North Korea is a special case of intransigence, but also of co-operation. Now we really do return to the idea, as President Clinton enunciated, of working with North Korea to get sensible solutions there. China has its own particular relationship with Taiwan, and that might have unfortunate nuclear implications in the future. Heaven forfend that it might, but anything can happen in this dangerous world.
	Against that background, what the European Union has achieved so far in its initial contacts and negotiations over a considerable period with Iran, which is a special case and a special problem at the moment, has stood it in good stead and showed that it can make that contribution. Although it was a special one-off, ad hoc, separate mechanism of the EU3 and not part of the overall collective Union effort, it has done Europe a whole host of good in the way in which it has been handled. I believe that more will now come. We have had Xavier Solana's crucial visit to Iran yesterday and today, and we await the results of that visit and the offerings that he is bringing now to continue the process on behalf of the UN Security Council and the European Union, but representing the European Union in this context. Iran knows what its obligations are. They must be faced up to, which means that people in Tehran must accept the realities of the obligations that Iran has had for a long time under the NPT.
	I quickly repeat that the preamble to the NPT declares that the state parties affirm,
	"the principle that the benefits of peaceful applications of nuclear technology, including any technological by-products which may be derived by nuclear-weapon States from the development of nuclear explosive devices, should be available for peaceful purposes to all Parties to the Treaty, whether nuclear-weapon or non-nuclear-weapon States".
	The whole world is now watching to see how Iran is handled by the west, by the UN Security Council and by the EU3. The questions for Iran are crucial, need repeating and need to be answered properly. Does Iran really want a nuclear bomb? The answer may, sadly, be yes. I hope not, but the resumption of the anti-NPT activities commenced a long time ago in 1985 during the dreadful war with Iraq. Will UN sanctions be imposed? I hope not. The EU3 has already made very generous offers, which will be repeated and augmented, I believe, by Solana's visit yesterday and today.
	Iran's economic structure makes it very vulnerable to economic and financial sanctions, as it knows. If Tehran persists in its nuclear activity, will the US intervene and strike? Why would this be necessary? Jack Straw quite rightly said that that would be nuts; indeed, tribute has been paid to him tonight. The US is now already effectively ruling out such an intervention, thanks to the efforts of Condoleezza Rice.
	The United States' relationship with Iran has been very tragic and based on a built-in dilemma for the United States that Washington's extensive diplomatic and military support for the Shah's repressive regime was a cause of deep resentment for many Iranians. More recently, liberal American society and its dubious culture, including pornography, drugs, gambling and all the other activities associated with United States economic activity, was anathema to the powerful religious establishments under Ayatollah Khomeini, which considered the USA to be the Great Satan. A lot of bad blood has been shown on both sides, and now is the time for the United States, the whole western world and the UN to show common sense towards Iran. Now is the time for reconciliation and a future agreement that could be lasting. That is perhaps the most immediate reason for this crucial and urgent debate today, but many others face us, as the noble Baroness, Lady Williams, pointed out.

Lord St John of Bletso: My Lords, I, too, thank the noble Baroness, Lady Williams of Crosby, for introducing this debate today. Once again, the international community has cause to be profoundly concerned by the proliferation of nuclear weapons. It is also important, however, that the word "nuclear" should not be cast in a completely negative light, because although nuclear weapons remain a threat, nuclear energy may prove to be our salvation.
	This debate on the proliferation of nuclear weapons is constantly evolving. Three years ago, we were worried by developments in India, Libya and Iraq. Today, we find that our attention is preoccupied by developments in Iran and North Korea. However, although the focal points of our concern may be changing, I believe that the most sensible course of action remains the same. It is simply this: Her Majesty's Government should support the worldwide adoption of a clear, unambiguous and straightforward policy, and stick to it. Furthermore, Her Majesty's Government should use their influence in Washington—I am pleased that the Minister has already mentioned Condoleezza Rice—and we need to work hard to ensure that the United States does the same.
	It is my belief that many of the problems that we face today have arisen as a direct result of uncertainties and misunderstandings caused by a general failure to apply our stated policy equally across the board. We have sent mixed signals, mistrust has spread, and we are now confronted with an uncertain and potentially dangerous future. The essence of the NPT was unequivocal. The treaty stands on three pillars: non-proliferation, disarmament and the right to use nuclear technology peacefully. I repeat all this to underline the view that, 40 years on, the treaty continues to represent a sound basis for international agreement to control the development of these deadly weapons. Sadly, as the noble Baroness, Lady Williams, has already said, the major contributors to the NPT have failed to keep their side of the bargain.
	I was pleased that the noble Lord, Lord Dykes, recalled that South Africa was the first and only country with nuclear capability to willingly dismantle its nuclear programme and accede to the Nuclear Non-Proliferation Treaty. As every speaker has said, particular concern is focused today on Iran and North Korea. There is no doubt that both countries are in breach of the NPT. The west's relationship with Iran is nothing if not complex. Relations have certainly deteriorated since the recent election of President Ahmadinejad, who seems to personify a general mistrust of western powers. His statements on Israel are clearly offensive and inflammatory, and his Government's refusal to answer questions of the International Atomic Energy Agency suggests that Iran is determined to pursue a uranium enrichment programme. Now the west is faced with a choice: either we meet force with force in Iran, as we did in Iraq, or we seek to alleviate the mistrust and negotiate a calmer, lasting agreement. The second option is clearly preferable.
	A similar situation has developed, as has already been mentioned, in North Korea. It has been clear for four years that North Korea has pursued a programme to enrich uranium for use in nuclear weapons. North Korea is generally accepted to have produced enough plutonium for one or two nuclear weapons, although some estimates range between five or six. Those are obviously areas of grave concern, but it would be quite wrong for us to fret over developments in Iran and North Korea, and turn a blind eye to Israel and India.
	It bears repeating: if the NPT is to mean anything, it must surely be implemented clearly, unambiguously and equally across the board. The US has always opposed the proliferation of nuclear weapons, but United States policy and, by extension, United Kingdom policy, seems to have been determined by whether the countries concerned are broadly supportive of or antagonistic to US interests. US and, for that matter, UK officials have considered that since there are no conceivable circumstances where Israel or India would pose a threat to us, our opposition to their nuclear weapons development has rarely been sustained. Today, US/UK policy has evolved into tacit acceptance. Obviously, turning a blind eye to countries which we happen to like does not represent a clear, unambiguous implementation of the NPT, and our selective approach undermines the treaty.
	It is not enough for us to sit back and casually point to the fact that neither India nor Israel ever signed the NPT, so they cannot be held to be in breach of the treaty. We must deal with the reality. What is wrong in Tehran and Pyongyang must be wrong in Tel Aviv and Delhi. If we develop an international treaty, we cannot simply apply it to countries of which we do not approve. As one commentator put it, the US and UK look as though they are preaching temperance from a bar stool.
	So, what now? As my noble friend Lord Hannay mentioned, the seventh NPT review conference was held at the United Nations in May 2005, but it may be time for a renewal and affirmation of the treaty and a new global commitment, particularly from the US and the UK, to implement its terms equally. Such a declaration would help to address concerns in Iran and North Korea, and to defuse the current situation. I believe that this is the best way forward.

Lord Alderdice: My Lords, like other noble Lords, I, too, thank my noble friend Lady Williams of Crosby for obtaining this important debate, but I hope that it is a taster for a more full-length debate in your Lordships' House. This is a matter of enormous complexity and importance. It would not be right if all our consideration was confined simply to this dinner hour. It is really only possible to deal with a very limited number of issues. I shall focus on a strategic question, which I hope that the Minister will be able to answer.
	From the beginning 60 years or so ago, there were two approaches to nuclear proliferation. One was associated in the minds of the public, I suppose, particularly with the names of Einstein and Szilard, the two scientists who spoke so much not about just the scientific aspects of the problem but also the political problems. Their view was that the whole community of nations had to come together to address nuclear proliferation. It was perhaps best put politically by President Eisenhower in his 1953 "Atoms for Peace" speech at the United Nations. He said:
	"But the dread secret, and the fearful engines of atomic might, are not ours alone . . . the knowledge now possessed . . . will eventually be shared by others—possibly all others".
	Therefore, the multilateral approach that developed from that, of which the NPT is the most significant element, was an understanding that you cannot stop the knowledge indefinitely: you have to concentrate on co-operation and persuasion, and make available to all countries that wish it the civilian developments of nuclear energy, and encourage that. The positive thing is that while physicists such as the eminent Dick Wilson at Harvard would say now that in 1946 they thought that by now there would be 100 nations with the bomb, of course there is less than one-tenth of that. That shows a success on the part of the NPT. Of course, the lack of success was more in the hands of the "haves" than the "have nots".
	It is very worrying that the other strand of opinion about nuclear proliferation and how to deal with it, associated perhaps particularly with the name of General Leslie Groves who headed the Manhattan project, was that the United States had to make sure that no one could get the hold of nuclear technology unless they were an ally of the United States. Civil use could always progress into military use. Although that view took a back seat for a long time, one senses that it never died away completely and in recent years it has begun to come forward again in the American mind and thinking.
	I say that because one has noted a number of comments of this kind and can see the different approach to Iran and in the way the 2006 US national security strategy worryingly undermines the other element of NPT—not only the side saying that everyone should have nuclear technology for civilian use but also the commitment of the "haves" in the form of the nuclear powers, that they would never use nuclear military power to blackmail those who do not have it. But when we have a doctrine of pre-emption—if a terrorist attack was made on the United States using a dirty bomb, the US would feel able to pre-empt and respond to such an attack against any country which it felt might be associated with it. Of course, the people of the Middle East and, with all that has been said about Iran, feel particularly vulnerable. In fact, sometimes I think that the big message of the Iraq war for any country on the other side of the argument from the United States is: get a bomb and there is a fair chance you won't be attacked. Certainly that is the message I hear from people in the Middle East. If Saddam had really had a bomb, he would not have been attacked.
	That leads me to the strategic question to put to Her Majesty's Government: which of these strategic approaches is now being adopted? Is it the multilateral approach which says that everyone should have the option and that those of us who have the military technology will, along with others, negotiate to reduce it while encouraging everyone towards the practical civilian use of nuclear energy at a time of increasing difficulties regarding energy supplies, or do we find ourselves pulled towards what I have described as the Groves doctrine, that it is only our allies we can trust with the technology because it can always be used for military purposes? The reason for concern about this is because when considering Iraq, the argument heard in your Lordships' House went something like this: "Well, they have WMD". Later it became, "Well, they have WMD programmes". The next argument was, "Well, they have the technology to develop WMD—covert programmes". Finally the argument became, "Well, they have the people who know how to do this".
	I fear that we see the same kind of argument beginning to develop over Iran and nuclear technology. "They have got it". "No, they haven't got it but they do have programmes to develop it, which is urgent". Of course, Mr Negroponte recently remarked that it may not happen for 10 years, but they have the people who could do it if they really wanted to. That is a very dangerous argument. Indeed, I was particularly concerned when the Foreign Secretary, the right honourable Margaret Beckett, commented that there are "two paths ahead" and that:
	"We urge Iran to take the positive path and consider seriously our substantive proposals".
	That, I presume, is the multilateral approach of talks. But the Foreign Secretary referred to two paths. The suggestion that Her Majesty's Government are beginning to tinker with what I have described as the Groves understanding which now informs some senior people in the US Administration is worrying. I therefore seek the noble Baroness's reassurance that that is not a strategic shift on the part of Her Majesty's Government and that we will have a serious debate and discussion within our scientific and political communities and in the community at large over how to address this seriously deteriorating situation.

Lord Garden: My Lords, I, too, thank my noble friend Lady Williams of Crosby for arranging this important debate. As other noble Lords have said, the timing is perfect given the launch of the Hans Blix commission report on weapons of mass destruction over the past week. The report analyses the threats from what the commission assesses are 27,000 nuclear weapons still around on the globe, as well as the potential threat from those who wish to acquire such weapons. In a debate of one hour, we can scarcely do justice to the 60 different recommendations made in the report. I hope that the Minister will tell us that the Government are going to study the Blix report carefully. Perhaps, for once, they might come up with a reply to the report showing how we will take forward those 60 recommendations.
	Our minds are focused on the impending crisis over Iran's nuclear enrichment programme and the potential proliferation implications. No doubt we will come back to that in other debates but, as my noble friend Lord Alderdice has highlighted, nuclear proliferation by states has been a relatively slow business. Over the past 60 years, nine states have become nuclear—the big five, India, Pakistan, Israel and probably North Korea. A number—and it is more than just South Africa and the three previous Soviet republics—have abandoned their developments along the way to nuclear weapons over the years. We need to remember that the web of arms control measures, although they have not been 100 per cent effective, has played a significant role in constraining proliferation by states.
	There is much more that we should do to put new life into the arms control process but it is clear that some of the major players currently lack commitment. This is evident not only in the extraordinary increase in nuclear weapons spending by the United States; I was in Paris last week listening to the French proposals for new systems and a new doctrine which run counter to the aims of the non-proliferation regime.
	However, the dangers from nuclear proliferation are now as much about the possibility of both fissile material and expertise being transferred illegally for either financial or ideological reasons. Despite the benefits that the noble Lord, Lord St John of Bletso, saw with nuclear power, it does of course release yet more fissile material to be used illegally. This raises the small but finite possibility of non-state actors gaining access to nuclear weapons. Few experts believe that it is likely for the foreseeable future that it will possible for such groups to manufacture a fission bomb from scratch. The problem arises from access to ready-made weapons—or to highly enriched uranium—that have already been produced by states.
	The source of these risks is very clear. Since 1995, the IAEA has maintained an illicit trafficking database, which records 662 confirmed incidents of theft, 18 of which involved highly enriched uranium or plutonium, including a few cases involving kilogram quantities. Both the United States and Russia still have a large number of nuclear weapons, as we have heard, and an even larger stockpile of material that they need to safeguard. Russia has a particular problem in safeguarding old tactical weapons which may not have the permissive action links that would lock the weapons. There is also a particular worry, which we have not heard so far in the debate today, about Pakistan's weapons. We are aware that some of the extremist terror organisations operate illegally from within Pakistan and that the country has suffered instability in the past.
	But no nuclear weapon state can be complacent. Are we certain that United Kingdom weapons and materials are properly defended? I do not expect the details to be released into the public domain, but Ministers need to keep a regular check that standards are being maintained as we go down the route of more contractorisation and outsourcing of the public sector. Have we taken into account the lessons we learnt from Libya—now well documented—in terms of how the AQ Khan network operated, and have we put the appropriate countermeasures in place?
	The WMD commission report rightly states that we require,
	"many parallel and reinforcing approaches in the fields of arms control, disarmament, non-proliferation and anti-terrorism, at all levels—unilateral, bilateral, regional, plurilateral and global".
	In my view, the UK has got a good story to tell in terms of observing its NPT and other arms control obligations. I look to the Minister to tell us what proposals the Government have to take forward the arms control agenda from this position. In particular, what will the Government do to get movement on bringing the Comprehensive Test Ban Treaty into force and to negotiate a fissile materials cut-off treaty? Will the Government push for a global treaty to assure non-nuclear weapon states against threats of attacks by nuclear weapons? These negative security assurances can reduce the incentive for proliferation. Finally, will the Government back the commission's call for a world summit at the UN on disarmament, non-proliferation and terrorist use of WMD?

Lord Astor of Hever: My Lords, I, too, thank the noble Baroness, Lady Williams, for introducing this important debate.
	The Nuclear Non-Proliferation Treaty was drawn up in a world order where the great danger was of a war between two nuclear superpowers, but the end of the Cold War and the development of a new global system have changed this. While proliferating states are still a concern, a new threat has emerged in the form of terrorist groups. Unlike states, terrorists do not need access to uranium mines, complex nuclear facilities or reliable delivery systems, as a dirty bomb alone would be sufficient to meet their ends. Nor can terrorists be deterred by traditional means. Whereas states seek nuclear weapons to deter potential attack, terrorists seek to use them to inflict havoc and destruction.
	Nuclear weapons technology is now easier to acquire, and the industrial capacity of states to manipulate such technology has improved vastly. We have seen the development of an international black market for nuclear material. The dismantling of the AQ Khan network was a success, but we still do not know the full extent of the materials and expertise that it provided to countries such as Iran, or whether elements of the network are still intact. The efforts of countries such as Iran and North Korea to subvert the NPT have eroded confidence in the treaty's ability to constrain proliferators.
	It is vital to British interests that Iran does not become a fully fledged nuclear power. There would be a real possibility of an arms race in the Middle East and serious implications for the future of the NPT regime if a country that had signed the treaty succeeded in using it as a cover to develop nuclear weapons.
	The Iranians continue to claim that all work done in this area is for civilian use only. They claim that their activities are legal under the provisions of the treaty and describe Western objections as "bullying". It is true, as is frequently pointed out by those in Iran who would try to justify their nuclear work as research into nuclear energy rather than weaponry, that the non-proliferation treaty aims to promote co-operation in the peaceful uses of nuclear energy as well as to work towards nuclear disarmament. However, it was set up to operate in a climate of openness and mutual trust between countries. To this end, the International Atomic Energy Agency was established, with a clear warning that countries that hoped to divert nuclear technology and material into military uses would be identified and stopped. Iran's 18 years of concealment of its nuclear activities from the IAEA and repeated violations of its safeguards agreement does not inspire confidence. There are strong grounds to doubt that it is pursuing solely peaceful research.
	The IAEA concluded in April that Iran must go well beyond the terms of its agreements with the IAEA to restore international trust in its intentions, but instead of responding positively to this demand, Iran has accelerated its enrichment research and reduced IAEA access by ceasing to implement the additional protocol. Furthermore, the Iranian Government have ruled out a proposal for the country to meet its civilian nuclear power needs through a joint-venture enrichment programme in Russia, an opportunity that Iran would surely grasp if its intentions were purely peaceful. The Iranian leadership has also made blunt threats to disrupt the flow of oil to international markets.
	I hope that consistent international pressure will lead Iran to clarify all outstanding issues with the IAEA, to demonstrate conclusively that its nuclear programme is for civilian purposes only and to make the commitments that could lead to an improvement in its relationship with the rest of the world. I add my voice to those who have spoken in support of the US Government's offer of talks with Iran if it agrees to suspend its uranium enrichment activities. This is a very positive step towards a diplomatic resolution of the current crisis, and I hope that Iran will respond fully.
	The debate about Iran serves to highlight how much the world has changed since the Nuclear Non-Proliferation Treaty was signed. At least three countries now have nuclear weapons which are not governed by the treaty and two more are attempting to join them. We must not let the treaty become an irrelevance as more countries develop nuclear weaponry outside its framework. Will the Minister give any indication that serious steps are being taken to establish a worldwide protocol to cover these countries? Can she explain what plans the Government have to monitor and regulate future agreements between countries that have signed the Nuclear Non-Proliferation Treaty and those that have not? Finally, what steps are the Government taking to ensure that past unauthorised exchanges of nuclear technology such as that which passed between North Korea, Pakistan and Libya do not happen again?

Baroness Royall of Blaisdon: My Lords, like other noble Lords I thank the noble Baroness, Lady Williams, for securing this all-too-short debate and for highlighting the continuing relevance and value of the non-proliferation and disarmament regime, albeit a more fragile regime than we all would wish. Her excellent analysis has illustrated why the non-proliferation treaty must remain the cornerstone of the UK's counter-proliferation policy. But clearly the non-proliferation and disarmament regime continues to face real and pressing challenges, as outlined so recently in the excellent report by Hans Blix. I can assure the noble Lord, Lord Garden, that the Government are carefully examining the Blix report in relation to calls for a world summit. As the UK is certainly committed to progress in a multi-disarmament forum, a world summit could be considered.
	As noble Lords will be aware, our efforts last year were focused principally on the review conference and on the Millennium World Summit last September. In both, the United Kingdom worked tirelessly to achieve ambitious and balanced outcomes with strong commitments on non-proliferation and disarmament. The final result was disappointing. However, the lack of a formal outcome should not detract from the real gains. There was a lot of good and detailed discussion of ways in which the treaty could be strengthened and we intend to take those forward in the different international forums. The EU, for example, put forward ideas on measures to discourage withdrawal from the treaty and those drew widespread support. The very fact that the EU reached a common position on the NPT continues to be useful.
	On the Millennium Review Summit, noble Lords will recall that the then Foreign Secretary, Jack Straw, was personally involved in an initiative led by Norway that would have offered a substantive strengthening of international commitments on non-proliferation and disarmament. In this instance the UK was operating in a purely national capacity. We were prepared to work with six other countries, including South Africa, that have wide-ranging positions on these issues and we were successful in finding much common ground on which we could proceed towards the shared aim of strengthening international non-proliferation. However, while it was not possible at the summit to make substantive progress, more than 80 countries openly supported the initiative. We continue to be engaged with the initiative and look forward to further opportunities to take forward the group's agenda.
	The nuclear non-proliferation regime will continue to face new challenges, but we believe that these challenges serve to bolster support for it rather than to undermine it. We share that commitment with an overwhelming majority of states and we will continue to use all available international forums to build consensus to strengthen and reinforce the regime. For example, we are taking every opportunity to encourage all states to adopt the IAEA's additional protocol. The UK supports the 2006 EU joint action in support of the IAEA, as we did last year, and this provides substantial EU funds for pursuing nuclear safety projects in target countries. I recognise, of course, that it requires further money.
	We have also been at the heart of negotiations for a new and strengthened mandate for the committee reporting on UNSCR 1540. We are actively working with others to formulate appropriate incentives for countries to forgo fuel-cycle facilities. We fully recognise the right of states that comply with their obligations under the NPT to use and benefit from nuclear technology as set out in Article 4. As the noble Lord, Lord Alderdice, said, you cannot stop knowledge. It is clear that the nuclear fuel cycle presents particularly acute proliferation risks. We are currently working with the US and other international partners to develop a fuel supply mechanism that we hope to put before the IAEA for approval before the end of this year. We are also working with G8 partners towards more technically advanced solutions that would allow states to reap the benefits of civil nuclear energy without the risk of further transfer of proliferation-sensitive technology. Connected to this is our work to strengthen the Nuclear Suppliers Group.
	These are all significant steps to counter the dangers of nuclear proliferation. But our record also demonstrates that we have made progress in nuclear disarmament. We take our disarmament obligations under Article VI of the NPT very seriously. As noble Lords have said, we have an excellent record in that area. Since the end of the Cold War we have reduced the total explosive power of our nuclear forces by more than 70 per cent. We are the only nuclear weapon state to have reduced its deterrent capability to a single nuclear weapons system, Trident. I assure the noble Lord, Lord Hannay, that full account will be taken of our commitments under the NPT when the forthcoming decision on Trident is taken.
	We continue to press for multilateral negotiations towards mutual, balanced and verifiable reductions in nuclear weapons. Of course, we remain fully committed to the Comprehensive Nuclear-Test-Ban Treaty (CTBT). We promote its entry into force bilaterally at every relevant opportunity. We will continue to pursue what we see as the next step in achieving progress on disarmament; namely, the immediate commencement of negotiations on a Fissile Material Cut-off Treaty (FMCT). We welcomed the draft FMCT text and mandate for an ad-hoc negotiating committee, tabled in the Conference on Disarmament in Geneva by the US on 18 May. We also welcome the fact that India has committed to work with the US on an FMCT.
	Naturally, we watch with interest the discussions in the US Congress on India. We believe that there are clear benefits to be gained from bringing India further into the broader nuclear non-proliferation framework. This will strengthen this broader framework, which is underpinned by the NPT. We have strongly supported the initiative from its inception and have been actively involved throughout.
	The Government welcomed the 19 September statement of principles by the parties to the six-party talks. We have consistently urged North Korea to return to the talks so that these principles can be converted to real progress. We greatly regret that progress has not yet been made. But, although we are firm supporters of the process, the UK is not one of the six parties, so we have limited influence on the progress of the talks.
	Many noble Lords understandably referred to Iran. The Government warmly welcomed the announcement by the US that it would be willing to participate in negotiations with Iran provided Iran resumed its suspension of all enrichment-related and reprocessing activities. This explicit statement, and the support expressed in Vienna last week by the Foreign Ministers of China and Russia, greatly enhances the attractiveness and weight of the proposal presented to the Iranian authorities in Tehran this morning by Javier Solana. I was pleased to see BBC reports that, according to the Iranian negotiator, today's talks have been constructive. But if Iran fails to re-engage, it must be clear that there will be consequences. We have worked to clarify thinking among key partners on the measures that the Security Council might take to further increase pressure. I assure noble Lords that, following the Foreign Secretary's Statement last week, there has been no strategic shift in our policy.
	The noble Lords, Lord St John of Bletso and Lord Dykes, referred to Israel. We have consistently urged Israel, as a non-nuclear-weapon state, to accede to the NPT. We have also consistently supported UNGA resolutions calling for the establishment of a Middle East zone free of weapons of mass destruction. That would, of course, include Israel.
	Today, as the noble Lord, Lord Astor, clearly stated, we must also consider the possibility that the threat of WMD proliferation and international terrorism will one day converge. The G8 global partnership against the spread of weapons and materials of mass destruction has committed to meet this challenge through raising up to $20 billion for the threat reduction projects the noble Baroness has described.
	The UK has demonstrated our willingness to shoulder our share of responsibility for countering this threat. In 2002, the Prime Minister pledged up to $750 million to the global partnership. Almost four years on, the UK programme is fully operational and delivering £43 million worth a year of measurable progress on the ground. In the past year alone, the UK has finished dismantling three nuclear submarines, constructed a new £20 million facility to deal with spent nuclear fuel as well as establishing projects to create 1,000 new jobs for former weapons scientists in the closed nuclear cities.
	The noble Lord, Lord Hannay, asked about progress under the G8 this year. As noble Lords will know, Russia has chosen to focus on energy security, and while G8 leaders are expected to agree a non-proliferation statement, it will focus on present challenges such as Iran as well as the non-proliferation implications of energy security. In closing, I reiterate that despite the many and varied challenges that the non-proliferation regime faces, the Government fully support and will continue to seek every opportunity for forward movement to uphold and strengthen the non-proliferation and disarmament agenda.

Lord Crickhowell: I think that this is one of the most bizarre amendments that I have read, even from the Liberal Democratic Benches. To begin with I do not have the faintest idea of what constitutes an expert in this context. The Liberal Democrats are going to appoint six experts to recommend the sums of money. We are told that the Barnett formula needs a replacement. That is possibly so, although I am bound to say that in the days when I had responsibility as Secretary of State for Wales, I was very careful to sit silently while my Scottish colleagues were being chastised about the excessive rewards that went to Scotland under that formula in a changing situation.
	I was always well aware that, certainly in those days, Wales did rather well out of the Barnett formula, not least in the field of local government, where Welsh local authorities undoubtedly did extremely well. It may be that things altered later—my noble friend Lord Roberts of Conwy may tell me that it all changed after those days—but I would be very hesitant to rush too easily down this road, because some might argue for experts to be appointed to represent the English regions, such as the north-east. When I was in Cabinet, passionate cases used to be advanced that the north-east did particularly badly, certainly compared with Scotland, but also with Wales.
	If this amendment were accepted in its present form, we would get into a very interesting bidding war. I must say it would give me a certain amount of entertainment to see all these experts and various parts of the country going to meet the present Chancellor of the Exchequer. I think that he might give them rather a rough ride. He would certainly tell them that, if the experts wanted more, someone else would have to get less. Either the Chancellor of the Exchequer would have to find more, and presumably increase taxation or find some other solution, or the other departments of state would have to get less so that Wales got more.
	As it happens, I was having a conversation a littler earlier in the evening with my noble friend Lord Fowler, and we were looking back to the past. I always used to keep a very attentive eye on the way in which my noble friend, then Mr Normal Fowler, put his case for more resources for health and social services. I always hoped that he would do well, because I was aware that Wales got a formula share of everything extra that he got and that we would do rather well out of it, so he always had my support. Although I understand the desire of the noble Lord, Lord Livsey of Talgarth, to ensure that Wales gets its fair share—we would all like Wales to get more, if that is possible—I do not really think he has produced a solution or a formula that is likely to be acceptable to anyone or workable in any normal sense of the word.

Baroness Noakes: Clause 121 concerns loans made by the Secretary of State to Welsh Ministers. Clause 120 allows Welsh Ministers to borrow from the Secretary of State to meet a temporary excess of payments over receipts in the Welsh consolidated fund or to provide a working balance. Under Clause 121 the Treasury makes money available to the Secretary of State for these loans, and subsection (2) provides for a limit of £500 million. My Amendment No. 97 deletes the £500 million limit and replaces it with £100 million.
	I should say that the amendment is a probing one. I hope that the Government will explain the rationale for the £500 million limit, especially as the loans are for only temporary imbalances between receipts and payments and for "working balances"—whatever that means. I therefore invite the Minister to say what calculations underpin the figure of £500 million. Will he say how that relates to the annual flows in and out of the Welsh Consolidated Fund? Will he also explain what is meant by a working balance and how much of the £500 million is expected to be used in this way? I beg to move.

Lord Evans of Temple Guiting: It may not test my advisers but it certainly tests me. If I do not get the answer to that extremely interesting question I will write to the noble Lord.
	As we heard, the amendment considerably reduces the overall borrowing limit from £500 million to £100 million. The present £500 million limit amounts to just 3.8 per cent of the Assembly's budget. The £100 million limit proposed in the amendment would amount to a tiny 0.7 per cent of the Assembly's budget. We feel that the current limit is reasonable and proportional and is the same as the limit set by the current Government of Wales Act 1998. The Government believe that the express provisions in the Bill for Welsh Ministers to borrow from the Secretary of State to cover a short-term deficit in the Welsh Consolidated Fund or to provide a working balance within that fund are very important. It is envisaged that such borrowing might be necessary in the event of a natural disaster or civil emergency. The noble Baroness may be reassured to hear that such powers also exist in the Scotland Act 1998 but have never yet been used in either Wales or Scotland.
	There is also a provision that this limit can be increased by the Secretary of State by order provided that the Treasury gives its consent. Any order would be subject to affirmative procedure in the House of Commons, thus preserving the principle that the House should control the supply of money to the executive.
	The noble Baroness asked two rather technical questions to which I am afraid I do not have the answers. I will be very happy to write to her on those.
	On the amount outstanding on the bridge, the noble Lord, Lord Crickhowell, will be delighted to receive the precise answer of £1.4 million.

Lord Evans of Temple Guiting: I appreciate the aim of the noble Baroness in tabling Amendments Nos. 98 and 100; however, they are not necessary. The Committee will be familiar with the parliamentary rule of procedure that a request to Parliament to authorise expenditure must originate from the executive.
	Clause 124(2) applies the same principle to Wales. It provides that a budget motion, covering the Welsh Ministers, the Assembly Commission, the Auditor General and the ombudsman, can be moved only by one of the Welsh Ministers. It is for Welsh Ministers to decide the amounts for which they seek authorisation in the annual budget motion. The Assembly will be able to scrutinise the amounts requested by the relevant persons in Clause 123(3)(b) to (d) in advance of the budget motion. For the Auditor General, estimates will be submitted to the Audit Committee for consideration before being laid before the Assembly, having taken any modifications into account. The Audit Committee will have to consult the Auditor General before proposing any modifications to his estimate.
	For the Public Services Ombudsman, it will be for standing orders to specify the relevant committee to which estimates must be submitted for consideration. The method of formulating the Assembly Commission bid can, like the appropriate committee to consider the ombudsman's estimate, be dealt with in the revised standing orders. Assembly Members will be able to scrutinise the amounts proposed in the budget motion in the light of those estimates and ultimately reject the motion if they are unhappy with it. I hope that the noble Baroness will feel that the necessary controls are there. The protection from the actions of Ministers and the ombudsman estimate procedure is set out in Schedule 10(85)(12).

Baroness Noakes: I am grateful to the Minister for setting that out clearly, and we will consider it in some detail. I am still not entirely clear whether the Bill protects the independent funding of those bodies, which everyone has agreed should be independent of the executive and of Ministers. The issue is not the underlying substance but whether the Bill achieves that protection. I will consider carefully what the Minister has said, including his additional reference this evening. I beg leave to withdraw the amendment.

Lord Roberts of Conwy: This schedule relates to transitional provisions as outlined in Clause 161 of Part 6. Again, we are indebted to the Delegated Powers and Regulatory Reform Committee for drawing our attention to the importance of the clause and its related schedule, a fact that I noted in our opening debate in Committee. Schedule 11 gives the National Assembly's existing functions of making subordinate legislation to Welsh Ministers in the new Assembly. The Delegated Powers Committee concludes:
	"we consider that the transitional provisions are more significant than in most other bills and that the affirmative procedure should apply to orders which modify Schedule 11".
	It seemed to me when I tabled my amendments that the affirmative procedure was missing or qualified in much of paragraph 29 of the schedule. Our amendments sought to probe that. My understanding is that an Order in Council, under sub-paragraph (2), is allowed to amend Part 1 of Schedule 5 and so,
	"enable the Assembly to . . . pass Assembly Measures in relation to that matter".
	The order would be subject to Assembly approval. The SI containing the order would be,
	"subject to annulment in pursuance of a resolution of either House of Parliament",
	under sub-paragraph (6), which is the negative rather than the affirmative procedure. Here, of course, we are dealing with the legislative competence of the new Assembly.
	The Delegated Powers Committee accepts the negative procedure before the UK Parliament, coupled with the affirmative procedure before the National Assembly in this case, on the grounds that it concerns functions already exercised by the National Assembly for Wales. But I revert to the principle that the affirmative procedure is needed where legislative competence is transferred.
	The Government have gone some way towards meeting this requirement with their amendment to sub-paragraph (7), which makes it clear that Orders in Council under sub-paragraphs (1) or (3) are subject to the affirmative parliamentary procedure. It is only orders under sub-paragraph (2) that are not so subject and for which, in the opinion of the Delegated Powers Committee, the negative procedure is sufficient. I beg to move.

Lord Evans of Temple Guiting: I do not accept that an Order in Council converting framework powers into measure-making powers should be subject to the affirmative procedure in Parliament. The requirements already written into the Bill for Assembly approval, together with the negative procedure in Parliament, are sufficient. Framework powers giving wide powers to the Assembly to make subordinate legislation have been included in certain Bills that are before Parliament this Session; for example, the NHS Redress Bill. Parliament has the opportunity to scrutinise those framework powers as part of the legislative process relating to the Bill in which they are contained.
	The Government have made it clear during this legislative Session that they intend for these framework powers to be converted into measure-making powers so that they will remain powers for the Assembly to make legislation. Therefore Parliament's scrutiny of these framework powers as part of the Bill's process has been carried out with full awareness of the Government's intention that they should, at a later date, be converted into measure-making powers. In this context, we feel there is no need for further scrutiny in Parliament at the point when an Order in Council is actually taken forward to convert the framework powers into Assembly measure-making powers. The necessary scrutiny will have been carried out as part of the process for scrutinising the Bill in which the framework power is contained.
	The House of Lords Delegated Powers and Regulatory Reform Committee supports our view that the negative procedure in Parliament is sufficient for an Order in Council converting the framework powers into measure-making powers. At paragraph 44 of its report on the Government of Wales Bill, the committee accepted that the negative procedure before Parliament, coupled with the affirmative procedure before the Assembly, is sufficient.
	The effect of Amendment No. 113, when read with Amendments Nos. 111 and 112, is that all Orders in Council under paragraph 29 of Schedule 11 will be subject to the affirmative procedure in Parliament. Amendment No. 113 specifically removes the provision in sub-paragraph (8) for Assembly approval of those Orders in Council under paragraph 29 which are not to do with converting framework powers into measure-making powers. By removing this provision, Amendment No. 113 makes all such Orders in Council subject to the affirmative procedure in Parliament.
	It is important to appreciate the likely content of the Orders in Council that are under consideration here. They are Orders in Council which provide, for example, for functions that would otherwise transfer to Welsh Ministers to transfer to the First Minister or Counsel General instead or, in the case of functions not related to making subordinate legislation, to the Assembly Commission or Assembly; or which direct that functions transferred to Welsh Ministers are exercisable concurrently with the First Minister, Counsel General, Assembly Commission or Assembly. It is unlikely that many such Orders in Council will need to be made. However, if such provision is required, we have the mechanism for dealing with this in paragraph 29.
	Sub-paragraph (5) provides that the consent of the persons most affected by such provisions—Welsh Ministers, the First Minister or Counsel General, who already exercise the relevant powers—must be obtained. In addition, sub-paragraphs (7) and (8) ensure that the decision to make the Order in Council is scrutinised by either the Assembly or Parliament.
	The functions concerned are those currently exercised by the Assembly and which are to be transferred to Welsh Ministers under the Government of Wales Bill. It seems right that the Assembly should be able to decide who might exercise these powers instead of Welsh Ministers. Therefore, if the Assembly feels able to approve the Order in Council transferring or making a direction in relation to the functions concerned, that should be sufficient for a recommendation to Her Majesty to make the Order in Council. I do not agree that Parliament should have sole responsibility for deciding whether such an Order in Council can be made and therefore I cannot agree to the removal of sub-paragraph (8).
	With the benefit of this explanation, I hope that the noble Lord, Lord Roberts, will feel able to withdraw his amendment.

Lord Evans of Temple Guiting: Before the noble Lord sits down, perhaps I may express the same thanks to my colleagues, to the people in the Box from the Wales Office and from the Welsh Assembly, who have been such a terrific support, and to everyone who has taken part in the debate. It has been constructive, good humoured—with perhaps one exception—and extraordinarily interesting. We look forward to the Report stage.

Lord Livsey of Talgarth: We associate ourselves with the sentiments that have been expressed from both Front Benches. I thank our own team—my noble friends Lord Thomas of Gresford and Lord Roberts of Llandudno—the Minister and especially the team from the Wales Office and the Assembly who have done a lot of very hard work. They know by now that we do work rather longer sometimes than the Assembly itself.

Lord Evans of Temple Guiting: moved Amendments Nos. 114 to 127:
	Page 172, line 36, after "Assembly" insert "constituted by the Government of Wales Act 1998 (c. 38) or the Assembly constituted by this Act"
	Page 176, line 43, at end insert—
	
		
			  
			 "Section 45D of the School Standards and Framework Act 1998 (c. 31). Power to repeal school funding provisions." 
		
	
	Page 178, line 24, leave out "and (2)" and insert ", (2) and (3)"
	Page 178, line 32, leave out "16BC(3)" and insert "16BC(2) and (3)"
	Page 179, leave out lines 17 and 18.
	Page 179, line 19, leave out "that Act" and insert "the School Standards and Framework Act 1998 (c. 31)"
	Page 181, line 10, at end insert—
	
		
			  
			 "Section 94(6) of that Act. Power to require Welsh local authority to pay fee in relation to review of adoption and fostering functions. " 
		
	
	Page 182, leave out lines 3 to 10 and insert—
	
		
			  
			 "Section 26(2)(f) of the Children Act 2004 (c. 31). Power to make provision about implementation of children and young people's plans. 
			 
		
	
	
		
			  
			 Section 26(4) of that Act. Power to require approval of such plans." 
		
	
	Page 184, line 2, at end insert—
	"(3) In this paragraph "pre-commencement enactment" means an enactment contained in an Act passed or subordinate legislation made before the end of the initial period."
	Page 185, line 27, at end insert "constituted by the Government of Wales Act 1998 (c. 38) or the Assembly constituted by this Act"
	Page 185, line 34, at end insert "or to which that Assembly was entitled or subject immediately before the end of the initial period"
	Page 191, line 18, after "Assembly" insert "constituted by the Government of Wales Act 1998 (c. 38)"
	Page 191, line 18, at end insert—
	"( ) In subsection (5)(a), after "Assembly" insert "constituted by the Government of Wales Act 1998 (c. 38)"."
	Page 191, line 21, after "Assembly" insert "constituted by the Government of Wales Act 1998 (c. 38)"
	On Question, amendments agreed to.
	Schedule 11, as amended, agreed to.
	Schedule 12 [Repeals and revocations]: